93 F. 936 -

93 F1d 936

Case Text

936

93 FEDERAL REPORTER.

It appears that during or before the time covered by the general V:O,;rage from New York out and before the loss of the tilg, the plaintiff applied to the dl;de:t'1dant company for permission and an indorsement on this. policy for the general voyage above described; which Will! refused; and that thereafter, on or about Septem1893, the plaintiff took out ..apolicy in the Atlantic Mutual Insul'ance Company for $17,500, It is contended that thereby the plaintiff exceeded the permitted inslirance. It is agreed that at the date of the issue of the Atlantic pdlicy there was $45,000 of insurance ;ssel, other than the $5.,000· policy in suit. Eaeh of the on the v potiCle!! was based upon an agreed valuation of $50,000, and the .in the aggregate reached that arriount. So that prior to SepteI)1ber21, 1893, tlH)re was $50,000 insurance, exclusive of the Atlantic policy. The loss occurred during the term covered by all the The Atlantic policy contained, however, the following:
"Provided always, and it is hereby further agreed, that if the said assured sliaU have made any other assurance upon the premises aforesaid,prior in day of date to this policy, then the said Atlantic Mutual Insurance Company shall be answerable only for so much as the. amount of such prior assurance may be deficient towards fully covering the premises hereby assmed."

As the prior assurance was to the total value of the vessel, and was in effect at the time and place of loss, it is evident, we think, that the express terms of the Atlantic policy excluded it from liability, since there was no deficiency. By its terms, the Atlantic policy, under the existing state of facts, could take effect only upon suspension of the other policies, and was at once suspended upon the revival of the other policies upon a return within the limits, so that at no time was there in effect more than the agreed sum of $50,000. The policy in suit. therefore, was not void for overinsurance, nor can the defendant reduce its liability by any claim for contribution by the Atlantic company. The fact that the defendant had refused permission to employ the tug outside the permitted waters we think immaterial. The rights of the parties were fixed by the contract contained in the policy in suit, and neither the refusal of the defendant company to enlarge its liability, nor the act of the plaintiff in insuring risks not covered by the former policy, can affect the construction of the contract in question, or restrict the legal obligations thereby incurred. The judgment of the cireuit court is affirmed, with interest, and the Kniekerbocker Steam Towage Company, defendant in error, is awarded the costs of this court.SOUTHERN EXP.

co.

v. PLATTEN.

February 21, 1899.)

(Circuit Court of Appeals, Fifth Circuit.
No. 727.

1.

A declaTation. in an action against a corporation for personal injuries, whieh alleges that defendant employed certain detectives to investigate :an alleged robbery, and that in the course of such employment such detectives, with other persons procured by them, committed an assault on

FOR TOR'rs OF AGENTS-SCOPE OF EMPLOYMENT.

SOUTHERN EXP. CO. V. PLATTEN.

9.37

plaintiff for the purpose of compelling him to confess to .the commission of the robbery, and inflicted the injuries sued for, states sufficient facts to connect the defendant with the injury, and to charge. it with liability therefor; the means employed by its agents in the investigation. being left to their discretion, in the exercise of which they were within their authority. A ratification or repudiation of their acts by defendant after they were committed. and plaintiff's right of action had accrued, would be immaterial.

2.

SAME.

Under the modern rule ad'opted by the courts, a corporation is liable at cCJmmon law for torts committed by its servants or agents, precisely as 11 natural person would be. A declaration to recover for an assault alleged to have been committed on plaintiff by representatives and agents of defendant in the course of their employment is not demurrable because it fails to state the names of some of the assailants, alleged to be unknown to plaintiff. In an aetion of tort to recover damages for an assault and battery. where there is proof of substantial physical hurt and injury, the plaintiff is entitled to recover compensation for the mental pain and suffering that necessarily resulted from the original injury.

3.

PLEADING-DECLARATION IN TORT.

4.

DAMAGES FOR ASSAl:LT AND BATTERy-MENTAL SUFFEIUNG.

5.

Acts of an alleged agent tending to show the exercise of control and authority over the business of the principal, and declarations and statements of agency made in the of other known agents. are admissible to establish the agency. 6. PLEADING- V AIUANCE-AMENDMENT DURHW THIAT,. The action of a trial court in denying a motion for judgment on the ground of a variance, and in permitting the amendment of the declaration, after the conclusion of plaintiff's evidence, to conform to the proof. iB not an abuse of discretion, where it is not claimed that defendant was rnisledby the variance to his prejudice. Pardee, Circuit Judge, dissenting.

EVIDENCE OF AGENCy-ACTS OF ALLEGED AGENT.

In Error to the Circuit Court of the United States for the South· ern District of Florida. John F. Hartridge, for plaintiff in error. H. P. Logan, J. W. Brady, and F. M. Hammond, for defendant in error. Before PARDEE, Circuit Judge, and SWAYNE and PARLANGE, District Judges. SvVAYNE, District Judge. This is an action originally brought by John J. Platten, Jr., defendant in error, against the Southern Express Company, a corporation under the laws of the state of Georgia, plaintiff in error, to recover damages for personal injury inflicted upon him by reason of an assault with deadly weapons committed by certain employes of the defendant company. The suit was originally brought in the circuit court, Pope county, Fla., but was afterwards removed by the defendant company into the circuit court of the United States for the Southern district of Flor· ida. The facts alleged by the plaintiff in his declaration, and proved on trial, except as hereinafter qualified, are as follows: That on or about theIst day of April, 1897, the office of the de· fendant company situated in the town of Bartow, Fla., was robbed of the sum of $2,500, and that shortly thereafter the defendant

938

93

REPORTER.

cOlnpanl sent its agents, W.T;j3herrett and C. L. Myers) to the town of Bartow' aforesaid,for thepnrpOBe of investigating the said. robbery, and to procure, if possible, evidence sufficient to convict t,hejjerson or persons who perpetrated the same; that the said W.J£, Sherrett and C.. L. Myers were especially selected by the defendantcompany for this purpose, and in pursuance of their employment, and in the investigation of the said alleged robbery, the said C, L.. :Myers, together withN. W, Buxton, and two ('ther perwere employed by the saiQ agents sons to the to make an assault with deadly weapons upon the plaintiff, and to seize him, throw him down, and by brute force deprive him of his personallibertJ" with intent to compel the said plaintiff to confess and admit that he had perpetrated the robbery upon the defendant above referred to; that the said agents and employes of the defendant company did endeavor to ,kidnap the plaintiff and carry him to a secluded spot, where'they'were to hang him up by a rope furnished by the officers of the company for that purpose; and that the' object of the compa"ny.in .committing this assault was to compel the plaintiff to ac:lmit that he had perpetrated the roblilery above mentioned. There is a second count in this declaratIon, alleging a conspiracy between the defendant corporation, by its 'bilkers, agents, and' sp¢c.iltl· ,representatives selected and chosen to investigate the robberyaQove referred to, and other officers,agents, and representativeso.f the defendant company unknown t@plaintiff, to commit the assault for the purpose hereinbefore set focth. To this 'declaration the defendant company demurred, '.\vliich demurrer being by the trial. court; err?r was assIgned; and the first to . be determmed here IS whether or not the court below erred in rendering judgment on this demurrer; !sustainihg defendant in !l:!rror's' The three questions raised by the demurrer are: (l):Does the declaration show, by relation of fact, :any connf?ctiQn 'between the de· fendant hom]>any and the assault complained of? (2) Were the employes of the defendant corporation, in committing the assault, acting the sc()pe9.Ltheir.enwlqr,ment? ,(3) Is it necessary that in such an action against a corporation the. na"mesof the parties who actually committed the assault be given? . Totheftrstq1,lestionit is allegeq'by the dechtrationthat ,the defendant company. selected,: and l'\entto the vicinage ,of :tbe ):'obhery, itsspecial,agents and representatives, W. T. Sherrettand C. L. Myer/il; ,that t4ese agents, .were specially instructed to investigate the alleged )Jobbery, and that the. said: agents,. in pllrsuance of their employmeJlJt" and jn .the illVestigati()n ot! ;t;he alleged, robbery, acting within the ,ilco:pe ,of the trespass., to recover.colUpeIlflation for whtch this'action was,brQught. Tbe assault upon the defendant in error by of the express company Was committed to further the inyesUgation of the robbery, and the wrong to.· defendant in; :errol' was committed byihe agents of the defendant company, therefore, in carrying! out the purposes of their employment. It is true that if the assault alleged had been committed willfully by the agents of the corporation, and in the performance
I

SOUTHERN EXP. CO. V. PLATTEN.

939

\)( an act not within tliJ.e scope of their employment, then these agents, who wer,e merely t4e servants of the stockholders of the corporation, CQu,ld not by their conduct render the corporation liable. In the case at bar certain persons were employed by the defendant company for the lawful and commendable purpose of ascertaining who was guilty of the robbery set forth in plaintiff's declaration. They were clothed by the defendant company with the power to exercise their discretion as to the to be adopted in ferreting out the crime. Acting under this authority, clothed with this discretion, seeking.to accomplish the ends for which they were employed, the agents of the defendant company did the wrong to plaintiff set forth in the declaration. It would not be contended otherwise than that a ·natural person, standing in the same relationship to the active wrongdoers in the at bar as did the defendant company towards these agents, would be liable under the circumstances set forth. At common law a corporation could not be maoe a defendant to an action of battery, or suchlike perlional injuries, for, in its corporate capacity, it could neither beat or be beaten; a corporation being, in the language of Sir Edward Coke, "invisible, and existing only in intendment and consideration of law," and wholly devoid of corporal body. But of recent years, with tb,egrowth of corporations, the multiplicity of interests owned by them, the diversity of business enterprises by them conducted, "jUdicial tribunals, with much wariness, and after close and exact scrutiny into their nature and constitution," ex necessitate have modified the strict rules of the common law in relation to corporate liability; and it is now declared to be the law that a corporation is liable civiliter for torts committed by its servants or agents, precisely as natural per-sops. Fotheringham v. Express Co., 36 Fed. 252; Railroad Co. v. Quigley, 21 How. 202; Salt Lake City v. Hollister, 118 U. S. 256, () Sup. Ct. 1055; Railway Co. v. Hanis, 122 U. S. 597, 7 Sup. Ct. 1286. It is admittedly correct, as stated by counsel for the defendant company, that affir-mative, willful action by the chief officers of the defendant company could not have made the company liable for the acts complained of in the declar-ation, for the corporation is liable only for acts of its servants and employes within .the scope of their duties. But in the case at bar the detection of tne felon who robb d the company's office was, in the judgment of the company, very important to it. .They employed their agents to detect the wrongdoer and bring him to justice. It was their duty to have selected for this purpose safe, careful, and prudent men,-representatives who would pursue this special business of the company in a legal, proper, and prudent way. 'l'his they did not do. They selected as agents men regardless of the rights of others; men who sougbt only the end for which they were employed, regardless of the means adopted to bring about this desired consummation. These agents committed the assault upon the plaintiff; and for tbi::; action by its agents, acting within the scope of their authority, the defendant company cannot escape responsibility. Whether or not there was a subsequent ratification of the acts of these agents by the chief officers of the company is immaterial, for the reason that immediately upon the perpetration thereof the liabil-

940

93 FEDERAL REPORTER.

ity of the company to make satisfaction therefor attached. The acts Qf the agent were the acts of the company. If the perpetrators of this outrage had been successful, by means .of the illegal andcriminal methods employed against the "defendant in error, in securing &vidence against him that would lead to his conviction of the crime of robbery, or to the recovery by the COmpany of the money of which it was robbed, then the company would have been the recipient of the advantage gained by the wrongful acts of its agents; and this was the end sought by the express company. But these agents were unsuccessful in their efforts, and the company gained nothing thereby. "The question is not whether the particular act was authorized, but whether the act done grew out of the exercise of an authority which the master bad conferred upon the servant." The bare reading of the allegations of the declaration demonstrates that the acts complained of grew out of the exercise of the authority given by the defendant company to these representatives. Should the demurrer to the declaration have been sustained for the reason that the names of the persons committing the assault were not named therein? There is nothing in this contention, for the reason that the names of these persons are set forth. In the declaration the names of these persons are given as follows: "Four persons, to wit. O. L. Myers, N. ';Y. Buxton, and two others to plaintiff unknown," employes of the company, committed the acts complained of. But even if no names were set forth in the said declaration, and it was alleged simply therein that certain agents and representatives of the defendant company, to the plaintiff unknown, had been guilty of this trespass, then the contention of plaintiff in error could not be sustained, for the reason that this deficiency would be only in a matter of proof,and not of allegation in the pleadings. It follows that there was no error made by the trial court in overruling the plaintiff in error's demurrer. It is contended by the plaintiff in error (the defendant below) that the trial court erred in permitting the plaintiff below to testify as to the mental suffering occasioned him by reason of the assault. Bearing in mind that this action. was one purely of tort, and that there was proof of substantial physical hurt and injury, there can be no question but what the plaintiff below was entitled to recover compensation for the mental pain and suffering that inevitably and necessarily resulted from the original injury. As was said by Mr. Justice Gray in Kennon v. Gilmer, 131 U. S. 28, 9 Sup. Ot. 697:
"When the injury, whether caused by willfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous consideration or cause, it is Impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to . be awarded."

And in the case of McIntyre v. Giblin, 131 U. S. clxxiv., 9 Sup. Ot. 698, in an action brought by the defendant in error against the plaintiff in error to recover damages for negligent shooting, Chief Justiee Waite expressly held that the plaintiff below was. entitled to recover "a faiircompensation for the physical and mental suffering caused by the injury."

SOUTHERN EXP. CO. V. PLATTEN.

941

Numerous assignments of error are based upon the admission of certain testimony which is alleged to be hearsay, and hence inadmissible. An examination of the record discloses that this so-called hearsay testimony was testimony of declarations and statements made by one who was proved to be an agent of the plaintiff in error while engaged in the transaction of the business of his principal, and hence was properly admitted in evidence. That the parties who made these declarations alleged to be hearsay were the agents of the plaintiff in error, there can be no reasonable doubt. The actions and conduct of W. T. Sherrett were of such a character, so continuous, so well known and notorious, not only to the people in and around the place where the robbery had been effected, but among the other recognized and admitted agents of the plaintiff. in error. He was recognized, received, and assisted as an agent of the express company, and for nearly three weeks was virtually in control of its office at Bartow for the purpose of his employment. During this time, by his directions, the books of the company were mutilated, that the plaintiff below might be decoyed from his bed at night to be assaulted as described. These and other acts of 'V. T.. Sherrett were properly submitted to the jury to establish agency. A careful examination of the record discloses no substantial error on the part of the trial judge in the admission of this testimonv. In the declaration it was charged that Myers and Buxton, and two others to the plaintiff unknown, were procured to make the assault set forth therein. There is no testimony whatever in the record that in any wise connects Myers with the assault, directly or indirectly. Upon the conclusion of the testimony on behalf of the plaintiff below at the trial, the attorney for the plaintiff in error moved the court to instruct the jury to bring in a verdict for the defendant on the ground that the evidence disclosed a fatal variance between the of the declaration and the proof in this respect, which motion was denied by the court; and the ruling of the court on this motion was assigned as error. There is no allegation, or even intimation, that the plaintiff in error had been misled in maintaining its defense upon the merits by this variance. There is nothing in the record, or on the face of the pleadings, in any wise showing that the express company was prejudiced thereby in any respect. This being the case, such variance was an immaterial one, and the court was correct in overruling the motion. and allowing defendant in error at that time to amend his declaration by striking out the name of Myers. It is only in case of a very gross or flagrant abuse of the discretion of the trial judge in allowing amendments to the pl9adings that the same will be interfered with in the appellate cOlIrt. A careful examination of thp entire record discloses no substantial error against the appellant, and the judgment appealed from is therefore affirmed. PARDEE, Circuit Judge, dissenting.

.'

.'

In 're BRICE.' ,: .court, is, D.

1.

p, ·:May 4,

Where ll.; voluntal'ybal1<lq:U1Pt,cy in one district, and is there M clerk In a etore, in on his own account, as a general merchant, In another distrIct, the ,court of bankruptcy In the latter distrIct has jurIsdiecloo'of the petition, the bankrupt's principal place of bUsIness being withitl <Its' :territorial lImits. , /Wllere the law of the state ,],897, ;§3190) pr9vIdes that a minr:r not disatfirlll hIs when, "from h1shaving engaged In business 'as' an Mult, the other party had good reason to belIeve hIm capable of <!Oilttll!cl1ilg<r ifamIoor 'engages In busIness as a merchant, and assume that he is of full age"and deal with hIm that, belicfi n9 iAquiry or representation beIng as to hIs minority, he becollles, abso,11,ltely liable for the debts contracted In such business, and may be, adjUd$ed bankrul>t on his own pe, ' , ,; , , tition, though still an infant.

PRJNC1l'iA.J,PtJACl!l 'OF BUSINESS."

2. SAlIIlE...... WnO,'lIl.u BECOME'

in

In 'Bankruptcy. lldjUdication of bankruptcy. , Dudley & o)ffin, for for bankrupt.' !) ," J. ; F. &. R. Lacey and II. "R.,: Sheriff,. for .opposing creditors. W. ' " ! ; 'i -)! , : Judge. cat,. s.: :arice having filed his petition in voluntary bilnkruptcy, the petition regularly referred to George W. seevers,. Esq., as referee in bankruptcy. Upon April 3, 1899, formally adjudicated Sltid;Brice to be a bankrupt, and said duly gave notice' for first meetingqf to the day fixed for' \§aid first meeting, Wyman,Partridge & claiming to be, creditors of said Bi'ice,prcilented tQ" the jlldge of this court their petition, wherei,n they sought vacation 'dfsaid adJudication. The such vacation wassb'ught were, in substance, that grounds on at date of sueh adjudication said ,was "a minor, and under the age of twenty'one years, andnM a 'person'within the intent of the bankruptcy statute, and therefore not entitled to the benefits of said statute"; that such fact was not dIsclosed by' the petition filed by him, nor upon said adjudication. AnaIbelldment to such petition for vacation alleges as further ground that this court has not jurisdiction to entertain ,said Brice's petition, because said Brice, up to the filing of his petition, continuously had' his' domicile and residence Northern district of thilil and principal place of business within state. To this petition for vacation of 'dtder of adjudication Brice files his answer, admitting that he is under 21 years of age, but averring that when he was 19 years old he was manumitted 'by his father, and that for more than 6 months before the 'filing of his said petition in bankruptcy, and at the date of suchfiling, he was openly engaged in business as a merchant in Mahlli'ika county, in this district. for Counsel for said Brice, for said petitioning creditors, as well other creditors, have been heard orally and by briefs. Upon the hearing, said Brice was examined under oath. The following facts appear: In January, 1898, the father of said Brice executed an instru-